FOIA Update: Significant New Decisions

Significant New Decisions

In a case involving particularly unfavorable facts, the U.S. Court of Appeals for the District of Columbia Circuit has severely criticized the routine administrative practice of "referring" documents originating with other agencies and also rejected the use of a time-of-request "cutoff" date for identifying documents responsive to a FOIA request. When freelance writer Fielding McGehee, III, requested documents on Jim Jones' People's Temple, the CIA instructed its components to search for records in existence on or before the date of McGehee's FOIA request. McGehee was not advised of this "cutoff" date and eventually was informed that 28 documents out of 84 located in CIA files were being referred to other agencies of origination for a direct response to him.

In a decision that is for the most part interlocutory, the D.C. Circuit found the agency's "cutoff" and referral practices so unsatisfactory, at least as they were applied in this particular matter, that it remanded the case for further scrutiny of these practices. Written by Judge Harry T. Edwards, the panel opinion also contained an unprecedented finding that the CIA's handling of McGehee's request amounted to "bad faith," precluding summary judgment on the existing record. Judge Robert H. Bork dissented from this latter finding.

The Department of Justice petitioned for rehearing en banc on Feb. 18 and its petition has not yet been ruled upon. Pending the outcome of further review of Judge Edwards' opinion, it should not affect agency practices in any way.

The U.S. Court of Appeals for the Ninth Circuit, in a case involving documents used in the investigation and assessment of a pardon application, has held that the threshold requirement of Exemption 7 is satisfied where documents meet a "rational nexus" test. This test requires only a logical connection between an agency's law enforcement duties and the particular records in question, which the court of appeals found present in this case on the basis of the "clear law enforcement implications" in pardon investigations. Significantly, the Ninth Circuit noted that use of the "rational nexus" test has validated Exemption 7 protection "even in FBI investigations of questionable legality," and it found the pardon documents before it certainly protectable by that standard. On a related access issue, the court of appeals also held the documents exempt under the Privacy Act pursuant to 5 U.S.C. § 552a(j)(2)(b).

The U.S. Court of Appeals for the District of Columbia Circuit has upheld the Department of State's use of Exemptions 1 and 3 despite a plaintiff's attempt to show that the information in question was "similar" to information already released to the public. While acknowledging that the release of public information usually will not cause damage to the national security, the court of appeals expressly recognized the many "practical difficulties" that FOIA requesters face in attempting to show that withheld classified information has previously been disclosed. In this case, it ruled that the plaintiff had failed to establish that the withheld information was indeed similar to publicly known information and it accordingly upheld the agency's classification determinations. The court of appeals also held that the records. at issue were properly classified despite the agency's failure to apply the "balancing" provisions of formerly applicable Executive Order 12065, holding that the plaintiffs argument on this point had effectively been "mooted" by the issuance of new Executive Order 12356, which does not contain a "balancing" provision.

The plaintiff in this case sought access to, among other things, the identities of persons who provided statements in an investigation conducted by the Occupational Safety and Health Administration (OSHA) of a construction site accident. Those persons provided statements in reliance upon the mere conditional assurances of confidentiality given by OSHA's investigators -- i.e., that their identities as sources would not be disclosed unless it became necessary to call upon them as witnesses in future proceedings. The court nonetheless held that such a conditional assurance of confidentiality is sufficient to support a ruling that the witnesses' statements are protected under Exemption 7(D). To require an OSHA investigator to give anything other than a conditional assurance of confidentiality under the circumstances, the court reasoned, "would be a crippling restraint on OSHA's ability to obtain information necessary to carry out its function."

The U.S. Court of Appeals for the Sixth Circuit has comprehensively described the limited circumstances under which district courts may conduct in camera inspection of withheld records in FOIA cases. Declaring that in camera reviews are not generally favored and that full in camera inspections are appropriate primarily where a very limited number of relatively brief documents are involved, it emphasized that an occasional failure of the "traditional" Vaughn affidavit does not mandate an in camera review of all withheld material, particularly when other adjudication techniques -- such as sample inspections and in camera affidavits -- may suffice. Resort to "premature" in camera inspection, the Sixth Circuit cautioned, could leave an agency "without an opportunity to apply its specialized knowledge of the contents of a document and its origin, so as to illuminate matter which would properly be withheld though [it] is not immediately obvious to an untrained eye."